A responsabilidade civil do estado decorrente da função jurisdicional

Abstract

This monograph approaches the State’s civil liability due to its court function. It aims at analyzing some most relevant issues on the state’s responsibility to indemnify the damage caused to individuals in the exercise of its specific activity according to the law. Through a descriptive and analytical method, it conceptualizes the State’s jurisdictional function as one of State’s functions and exclusively provided public service, emphasizing the jurisdiction right as a fundamental right. It especially describes the historical evolution of the State’s extra contractual liability and the doctrinal theories that have succeeded until the arrival of the theory of risk administration and objective liability adopted nowadays, mainly in the 1988 Federal Constitution. It deals with the requirements for the configuration of state’s responsibility and the excluding causes of this responsibility. It differentiates the acts of the Judiciary Power in administrative judicial acts and jurisdictional acts, to expose the differences in the State‘s responsibility for damages resulting from such acts. It characterizes the harmful judicial activities: judicial error, custody, delay in court provision and denial of justice. It deals with the judicial review’s repair. It analyses critically the theories about the state’s liability for damages due to typical jurisdictional acts performed in civil law suits and the jurisprudence understanding upon the subject. It examines the judge’s personal responsibility and the right of regression. It concludes with the recognition of the State responsibility and by the application of the general precept established in Art. 37, § 6, from the CF to the State judge, dismissing the arguments from supporters of irresponsibility, as a principle that best harmonizes with the State of Law.